The Honorable Ortrie D. Smith, United States District

Judge for the Western District of Missouri, sitting by

designation.

 The Honorable Thomas M. Shanahan, United States District

Judge for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2393

___________

Beryl Davey, on behalf of herself *

and others similarly situated, *

*

Appellants, *

* Appeal from the United

v. * States District Court for

* the District of Nebraska.

City of Omaha, *

*

Appellee. *

___________

Submitted: December 11, 1996

Filed: February 24, 1997

___________

Before BOWMAN and HEANEY, Circuit Judges, and SMITH, District

*

Judge.

___________

SMITH, District Judge.

Following a defendant’s verdict on Appellants’ claims under 42

U.S.C. § 1983, the District Court ruled for the defendant on 1
 Appellants have not appealed the jury verdict, nor have they

contested the District Court’s conclusion that the jury’s verdict

foreclosed a favorable ruling on their disparate treatment claim.

Appellants’ disparate impact and disparate treatment claims under

Title VII. The present appeal involves only the District Court’s

rulings with respect to the disparate impact claims. For the

2

reasons set forth below, we affirm.

I. BACKGROUND

The Appellants are a class of 90 library employees employed by

the City of Omaha, Nebraska (the “City”). For collective

bargaining purposes, City employees are represented by a variety of

statutorily created labor organizations; the Appellants are

represented by the Civilian Management Professional and Technical

Employee Council (“CMPTEC”). Contracts negotiated with CMPTEC

typically cover a three year span. In the event of an impasse,

either the City or the bargaining unit may file a petition with the

Commission of Industrial Relations (“CIR”), which has exclusive

jurisdiction over wage disputes involving Nebraska municipalities.

In resolving such disputes, the CIR “must establish rates of pay

and benefits which are comparable to the prevalent wage rates paid

to workers performing the same jobs with employers comparable to

Omaha.” Neb. Rev. Stat. § 48-818. The CIR has issued guidelines

declaring that a city is comparable to Omaha if it is no more than

twice as large as Omaha and no less than half the size of Omaha.

The CIR has also issued guidelines to aid in determining whether 
 The class certified by the District Court consisted of all

library employees affected by the wage scales at issue in this

suit. It should be noted that not all individuals holding the

classification of Fiscal Specialist, Office Supervisor and

Executive Secretary are library employees and hence are not

included in the class. It should also be noted that all

employees within these classifications were treated the same,

regardless of whether they worked in the library or elsewhere.

 The parties and the District Court agreed that the Hay

Study’s results were irrelevant to the disparate impact claim. 

Jt. App. at 2-3. However, as discussed later in this opinion,

the reason the City commissioned and attempted to use the Hay

Study is relevant to the issues presented on appeal.

3

jobs from other cities are properly comparable to jobs performed in

Omaha.

All positions are grouped into classifications. The

classifications relevant to this suit are those related to the

City’s libraries; specifically, the classifications of Librarian I,

Librarian II, Librarian III, Library Specialist, Fiscal Specialist,

Office Supervisor and Executive Secretary. Tr. at 76. In the

3

past, the City had negotiated across-the-board wage increases to be

applied to all classifications represented by CMPTEC. However, in

1986 the City desired to update its job descriptions, institute

performance appraisals and a merit pay system, and develop a salary

structure with wages that insured fairness and equity both among

City employees and with respect to the outside market. Tr. at 54-

55, 61, 695; Jt. App. at 23. To this end, the City commissioned a

study to be performed by Hay Management Consultants (the “Hay

Study”). Negotiations for the 1989-91 contract began in 1988. The

City attempted to use the Hay Study as a basis for negotiations,

but its use was opposed by CMPTEC. Tr. at 915-16. The focal 4
 Although contested at trial, the accuracy of Otteman’s and

Troutman’s statistical methods and the conclusions drawn

therefrom have not been presented as an issue on appeal.

4

point of these negotiations was benefits; wages were CMPTEC’s

secondary concern. Tr. at 445-46; 799-800. An impasse developed

over this issue, causing CMPTEC to file a petition with the CIR.

Tr. at 414-15, 430.

In preparation for the hearing before the CIR, both the City

and CMPTEC retained experts to conduct the wage study required by

law and the CIR’s guidelines. The City hired Robert Otteman, and

CMPTEC hired Gary Troutman. Dr. Otteman surveyed the cities of

Akron, Tulsa, Colorado Springs, Des Moines, Milwaukee, Kansas City

(Missouri), Wichita and Lincoln, as well as Douglas County

(Nebraska), the University of Nebraska Medical Center and the State

of Nebraska. Troutman studied the cities of Akron, Cincinnati,

Colorado Springs, Denver, Des Moines, Kansas City (Missouri),

Milwaukee, and Toledo. Although the precise numbers vary, both

experts agreed that many of CMPTEC’s members (and all members of

the class) were paid more than their counterparts in other

localities. Faced with this finding from both experts, CMPTEC

5

feared an unfavorable decision from the CIR and withdrew its

petition. Tr. at 418-19, 421-22.

As might be expected, the City was encouraged by the experts’

findings. As the end of 1989 drew near with no contract with

CMPTEC, the City faced three options. The first option was to do

nothing; if 1989 ended with no agreement, then the City would have

had no obligation to negotiate wages or benefits for that year.

Tr. at 422, 812-13, 899. The second option was for the City to 
5

file its own petition before the CIR with the expectation that the

CIR would order wages decreased for 1989. Tr. at 812-13, 899-900.

The viability of this option was based not only on the experts’

reports, but also upon the fact that, with respect to a different

bargaining unit (Local 251), the CIR had ordered a retroactive

decrease in wages. Tr. at 813, 823-24. The City’s final option

was to continue attempts to negotiate a contract covering 1989-91.

Tr. at 813, 900. Ultimately, the City chose to combine options two

and three. Tr. at 900-03. The City filed its petition before the

CIR in late December 1989; however, an agreement with CMPTEC was

still preferred because of the obvious advantages certainty for the

ensuing two years would bring. In addition, the City really did

not desire to enforce a retroactive wage decrease because of

concerns over fairness and morale; even when entitled to do so with

respect to Local 251, the City negotiated an alternative that did

not require the employees to actually pay money back to the City.

Tr. at 823-24.

In early January 1990, the City and CMPTEC resumed

negotiations. Instead of the across-the-board wage increase

instituted in past years, the City (through its Labor Relations

Director, Thomas Marfisi) proposed a series of four groupings, with

different wage increases for the classifications within each

grouping. Marfisi began by observing that, despite some

differences, Otteman’s and Troutman’s conclusions were

substantially the same. Tr. at 854. Marfisi then used Otteman’s

findings to group the classifications into four categories, based

on the degree to which Otteman concluded those classifications

were underpaid or overpaid when compared to the midpoint of the

maximum salaries of the other employers surveyed. Specifically, 
6

Group I consisted of those classifications that were 8% or more

above the maximum, Group II consisted of those classifications that

were less than 8% above the midpoint, Group III consisted of those

classifications that were between the midpoint and 7% below the

midpoint, and Group IV consisted of those classifications that were

more than 7% below the midpoint. The lines separating the groups

were determined by utilizing natural breaks in the percentages.

Tr. at 671, 814-16. 

All members of the plaintiff class were among those within

Group I; thus, though they received a wage increase for the years

1989-91, they received a smaller increase than those

classifications in the other three groups. However, the grouping

process evidences a disparate impact on women: CMPTEC represents

250 men and 103 women, while the employees in Group I consisted of

79 men and 87 women.

Eventually, CMPTEC agreed to Marfisi’s proposal. In July

1990, and over strenuous objection from members of the plaintiff

class, the City Council passed an ordinance approving the

groupings. The Appellants filed the instant suit in January 1992,

alleging that passage of the ordinance violated their civil rights,

constituted intentional discrimination, and resulted in a disparate

impact on women. The District Court concluded that the Civil

Rights Act of 1991 did not apply to this case, and therefore the

only claims submitted to the jury were those brought pursuant to 42

U.S.C. § 1983. Following a jury verdict in the City’s favor, the

District Court determined the jury’s verdict was binding with

respect to the intentional discrimination claim, but not the

disparate impact claim. After finding that the plaintiffs had

demonstrated a disparate impact on women, the District Court ruled
7

in the City’s favor because the City had demonstrated a viable

business justification for its actions. This appeal followed.

II. DISCUSSION

A. Application of the Civil Rights Act of 1991

The first issue that must be addressed is Appellants’ claim

that the Civil Rights Act of 1991 (the “Act”) applies to this case.

As this question is a legal issue involving statutory construction,

we must conduct a de novo review. Loehrer v. McDonnell Douglas

Corp., 98 F.3d 1056, 1061 (8th Cir. 1996). Our independent

consideration persuades us that § 105 of the Act does not apply

retroactively.

Section 105, which is codified at 42 U.S.C. § 2000e-k(1)(A),

provides that 

An unlawful employment practice based on disparate impact is

established . . . only if -- 

(I) a complaining party demonstrates that a

respondent uses a particular employment practice that

causes a disparate impact on the basis of . . . sex 

. . . and the respondent fails to demonstrate that the

challenged practice is job related for the position in

question and consistent with business necessity; or

(ii) the complaining party [demonstrates] an

alternative employment practice and the respondent

refuses to adopt such alternative employment practice.
8

The Act was Congress’s response to a series of Supreme Court

decisions; among the decisions specified by Congress was Wards Cove

Packing Co. v. Atonio, 490 U.S. 642 (1989), and § 105 “is a direct

response to Wards Cove.” Landgraf v. USI Film Products, 114 S. Ct.

1483, 1489 (1994). In Wards Cove, the Supreme Court held that a

business justification was a practice that “serves, in a

significant way, the legitimate employment goals of the employer”

and further directed that “the employer carries the burden of

producing evidence of a business justification for his employment

practice [but that] the burden of persuasion . . . remains with the

disparate-impact plaintiff.” Wards Cove, 490 U.S. at 659. 

In passing § 105, Congress intended to codify the standard

enunciated by the Supreme Court in Griggs v. Duke Power Co., 401

U.S. 424 (1971). Although this is not an appropriate case to

detail all the differences between Griggs and Wards Cove, it is

appropriate to point out that there are significant differences

between the two. 

Under Wards Cove, after the plaintiff established a prima

facie case of disparate impact, the defendant employer bore

the burden of producing evidence of a legitimate business

justification in defense of the challenged policy. The

burden of persuasion, however, remained on the plaintiff.

Under the Griggs standard, the burden is on the defendant

employer to prove both a "compelling need" for the challenged

policy, and the lack of an effective alternative policy that

would not produce a similar disparate impact. 

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 797 (8th Cir.

1993); see also Houghton v. Sipco, Inc., 38 F.3d 953, 958 (8th Cir.

1994).
9

We must begin by examining the language of the Act itself

while keeping in mind that “there is no special reason to think

that all the diverse provisions of the Act must be treated

uniformly for such purposes.” Landgraf, 114 S. Ct. at 1505. In

presenting their text-based argument, Appellants rely upon § 402 of

the Act, which provides as follows:

(a) Except as otherwise specifically provided, this Act and

the amendments made by this Act shall take effect upon

enactment.

(b) Notwithstanding any other provision of this Act, nothing

in this Act shall apply to any disparate impact case for which

a complaint was filed before March 1, 1975, and for which an

initial decision was rendered after October 30, 1983.

It seems clear that § 402(b) describes one case and one case only;

namely, Wards Cove. See Landgraf, 114 S. Ct. at 1493. Appellants

contend that by specifically exempting Wards Cove from the Act’s

application, and by declaring that, except as provided, the Act was

to take effect upon enactment, the Act must apply to all other

cases -- including this one. The major flaw in this argument is

that the Supreme Court has explicitly rejected it -- twice. Id. at

1494-96; Rivers v. Roadway Express, Inc., 114 S. Ct. 1510, 1514-15

(1994). In rejecting this analysis with respect to § 102 of the

Act, the Landgraf Court noted that “[h]ad Congress wished § 402(a)

to have such a determinate meaning, it surely would have used

language comparable to its reference to the predecessor Title VII

damages provision in the 1990 legislation: that the new provisions

shall apply to all proceedings pending on or commenced after the

date of enactment of this Act,” 114 S. Ct. at 1494 (citation 
 "In 1990, a comprehensive civil rights bill passed both

Houses of Congress. Although similar to the 1991 Act in many

other respects, the 1990 bill differed in that it contained

language expressly calling for application of many of its

provisions, including the section providing for damages in cases

of intentional employment discrimination, to cases arising before

its (expected) enactment. The President vetoed the 1990

legislation, however, citing the bill's ‘unfair retroactivity

rules’ as one reason for his disapproval.” Landgraf, 114 S. Ct.

at 1491-92 (footnote omitted).

10

omitted). The Rivers Court, when presented with the same argument 6

with respect to retroactive application of § 101, noted that the

argument “is no more persuasive as to the application of § 101 to

preenactment conduct than as to that of § 102.” 114 S. Ct. at

1514. 

The above reasoning applies with equal force to § 105. Had

Congress intended for § 105 to apply retroactively, it would have

said so clearly and directly: just like it did in Title VII. Given

the important considerations involved in deciding to apply a

statute retroactively, we do not believe Congress would have

employed such tortured language to achieve this result. See

Landgraf, 114 S. Ct. at 1495.

Appellants acknowledge Landgraf’s holding, but contend it

should not apply in this case because it would render § 402(b)

meaningless. However, as Landgraf explains, “[i]t is entirely

possible -- indeed, highly probable -- that, because it was unable

to resolve the retroactivity issue with the clarity of the 1990

legislation, Congress viewed the mater as an open issue to be

resolved by the Courts. . . . The only matters Congress did not

leave to the courts were set out with specificity in §§ 109(c) and

402(b).” Landgraf, 114 S. Ct. at 1494-95 (emphasis in original).
11

Rejecting Appellants’ argument does not render § 402(b)

meaningless.

Having concluded that Congress did not specifically declare

that the Act is to apply retroactively, “we must consider whether

the new statute would have a true retroactive effect, i.e., <whether

it would impair rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties with

respect to transactions already completed.’” Maitland v. University

of Minnesota, 43 F.3d 357, 361 (8th Cir. 1994) (quoting Landgraf,

114 S. Ct. at 1505) (footnote omitted). A statute is not

retroactive merely because it applies to conduct that occurred

prior to the statute’s enactment; “[t]he conclusion that a

particular rule operates <retroactively’ comes at the end of a

process of judgment concerning the nature and extent of the change

in the law and the degree of connection between the operation of

the new rule and a relevant past event.” Landgraf, 114 S. Ct. at

1499. Given the broad effect of § 105, it cannot be characterized

as simply a procedural change. Generally speaking, § 105

reallocates and raises the burden of persuasion with respect to a

business justification defense and redefines precisely what

constitutes a valid business justification. It seems clear, then,

that application of § 105 would attach new legal consequences to

employment decisions made prior to its enactment, rendering

impermissible certain acts that were previously permissible and

giving employers different issues to consider when making

decisions. We have no difficulty concluding that § 105 attaches

new consequences to prior conduct and significantly alters the 
 As an alternative argument, Appellants contend that the

City’s violation was continuing in nature, thereby permitting

retroactive application of § 105 under the facts of this case. 

We disagree for two reasons. “We are not familiar with any

Eighth Circuit law where the concept of continuing violation,

ordinarily associated with statutes of limitations issues, has

been employed to overcome a non-retroactivity rule.” Caviness v.

Nucor-Yamato Steel Co., No. 95-3482, slip op. at 8 n.1 (8th Cir.

Jan. 29, 1997). We went on to opine that applying the continuing

violation doctrine in this manner would violate Landgraf. Id. 

We are now bound by our decision in Caviness.

12

legal terrain that employers must traverse. Consequently, we hold

that § 105 does not apply retroactively.7

B. Disparate Impact Analysis

The employment decision attacked by the Appellants is the

City’s decision to place all classifications within the four

groupings; Appellants have specifically declared that this, not the

decisions regarding the amount of raise to award on an annual

basis, is the practice they challenge. The District Court found

that the groupings had a disparate impact on women, and the City

has not appealed that determination.

Once a plaintiff has demonstrated that an employment practice

has a disparate impact, the employer is called upon to offer a

business justification for the practice. “This phase of the

disparate-impact case contains two components: first, a

consideration of the justifications an employer offers for his use

of these practices; and second, the availability of alternative

practices to achieve the same business ends, with less

[discriminatory] impact.” Wards Cove, 490 U.S. at 658. A valid 
 Appellants suggest that the issue of business justification

is a mixed issue of law and fact and is subject to a de novo

review. We disagree. Wards Cove suggests that the employer must

“persuade the trier of fact” to succeed with the defense, Wards

Cove, 490 U.S. at 660, and we have previously treated the issue

as one of fact. Bradley, 7 F.3d at 798; see also Melendez v.

Illinois Bell Tele. Co., 79 F.3d 661, 670 (7th Cir. 1996).

13

business justification describes a business practice that “serves,

in a significant way, the legitimate employment goals of the

employer.” Id. At 659. An insubstantial justification will not

suffice, but an employer need not demonstrate that the practice is

essential or indispensable. Id. Even if the employer can

demonstrate a valid business justification, the plaintiff still has

the opportunity to persuade the fact finder that alternative

practices would have equally satisfied the employer’s interests

without creating a disparate impact. “Of course, any alternative

practices which respondents offer up in this respect must be

equally effective as [the employer’s] chosen . . . procedures in

achieving [their] legitimate goals.” Id. at 661. In determining

whether proffered alternatives are equally effective, the fact

finder may consider factors such as efficiency, cost, or other

burdens associated with the alternative. Id.

Our review of the record demonstrates that the District

Court’s findings were not clearly erroneous. The District Court

8

found that the City’s goal was to create a fair and equitable

manner for implementing wage increases for CMPTEC’s members. This

purpose was described in other portions of the record as a desire

to reach a fair and equitable settlement with the union.

Appellants do not deny that this is a valid business justification,

but rather claim that adoption of the groupings was not motivated
14

by this goal. Appellants contend that the evidence demonstrates

that the City’s goal was simply to negotiate a contract, but the

record belies this contention. The City had no obligation to

negotiate 1989's wages, and were in a good position to present a

successful petition to the CIR. As things turned out, the City

desired to negotiate a contract for 1989-91 if possible, but the

record does not demonstrate this to be the sole reason for the

groupings that were eventually adopted. As far back as 1986 the

City was interested in insuring equity in pay, with equity measured

not only internally but also in comparison to what other cities

were paying their employees. This is why the Hay Study was

commissioned, and this is why the City tried to use the Hay Study

during the initial round of negotiations. The testimony of Tom

Marfisi describing his reasons for making the proposal that was

eventually adopted more than adequately supports the District

Court’s findings that the groupings were adopted to promote

fairness and equity.

Appellants also attack the District Court’s finding that the

evidence supported the groupings that were adopted and that the

groupings promoted the interest of fairness and equity. Relying on

Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977), Appellants

contend the studies conducted by Otteman and Troutman were flawed

because they examined wages in an artificial market defined by

Nebraska statutes and CIR regulations as opposed to wages in the

market in which Omaha competes for library employees. Christensen

does suggest that wage decisions may be based upon the realities of

the market in which the employer must compete for workers. 563

F.2d at 354, 356. However, we disagree with Appellants’ contention

that the City’s decision was based on studies of irrelevant 
15

markets. We do not base this decision on the simple fact that the

decision was based on analysis of the markets described in Nebraska

statutes and CIR regulations, but rather because evidence in the

record supports the conclusion that the markets studied by Otteman

and Troutman are, in fact, the markets that Omaha competes in when

hiring library employees. Tr. at 543-44, 564-66, 585, 717-18, 730-

31.

Finally, Appellants dispute the District Court’s declaration

that they failed to introduce evidence demonstrating the existence

of a viable alternative. Appellants concede that they did not

address this issue in their post-trial brief, but contend that they

nonetheless presented evidence of three viable alternatives.

However, Appellants were not merely silent in their post-trial

brief; Appellants advised the District Court that “an alternative

option is not relevant in this case because no business necessity

has been demonstrated by Defendant.” Davey v. City of Omaha, No.

8:CV92-00046, slip op. at 23 (D. Neb. Apr. 15, 1996) (quotation

omitted). By telling the District Court that it did not need to

discuss alternative options, Appellants abandoned the issue and

cannot raise it on appeal. Kramer v. Kemna, 21 F.3d 305, 308 (8th

Cir. 1994) (“Failure to give the district court a first opportunity

to decid[e] the merits of an argument constitutes a waiver of that

argument.”).

Even if Appellants had properly presented the issue to the

District Court for consideration, we do not believe the outcome of

this case would be different. The first alternative, an across the

board increase equally applied to all CMPTEC members, is not viable

within the meaning of Wards Cove because it does not promote the

City’s goal of moving wages closer to those paid in comparable 
16

cities. The second alternative, implementation of the Hay Study’s

recommendations, is curious in light of testimony from one of the

Plaintiffs that the recommendations would have an “adverse impact”

on library employees. Tr. at 82. Furthermore, although the Hay

Study did conclude that there was less “internal equity” with

respect to library positions, the Hay Study reached the same

conclusion as did Otteman and Troutman in concluding that library

employees were paid above employees with similar duties in other

cities. Tr. at 711. Appellant has not pointed to any portion of

the record that demonstrates that the Hay Study would have both (1)

had a less disparate impact and (2) equally satisfied the City’s

goals when compared to the plan that was adopted. Cf. Wards Cove,

490 U.S. at 660 (burden of persuasion with respect to viability of

alternatives rests with plaintiff). Finally, Appellants

surrendered the opportunity to rely on the Hay Study when they

represented to the District Court that “the Hay Study is irrelevant

to Plaintiffs’ disparate impact claim and . . . that the plaintiffs

[sic] have never claimed that the Hay Study supports [the disparate

impact] part of their case.” Jt. App. at 3. 

Appellants’ third and final suggested alternative was for the

City to divide the groupings in different manners or utilize a

different number of groupings. The record demonstrates the

groupings were made by listing the various job classifications in

order of the degree to which their wages were over or above the

average median wages from other cities, and the lines were drawn in

natural breaks in those percentages. Appellants speculate that

alternative groupings would have been as or more effective at

achieving the City’s goal of external equity; however, as with the

other proffered alternatives, they have failed to identify any 
17

evidence demonstrating that equally viable alternatives would have

been equally effective in achieving the City’s goals.

III. CONCLUSION

For the foregoing reasons, the judgment in favor of the City

is AFFIRMED.

HEANEY, Circuit Judge, concurring and dissenting.

I concur in Section B of the majority’s opinion for the

reasons stated therein. I disagree, however, with the majority’s

conclusion that Section 105 of the Civil Rights Act of 1991 is not

retroactive. Assuming retroactivity, I nonetheless believe that

the librarians’ claim under the Civil Rights Act fails for the same

reasons they did not succeed under Section 1983.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.